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mon-law rule prevails unless the contrary be shown."" The quotation which the above text-writer makes from the Supreme Court of the United States was taken from the opinion in Edwards v. United States, 103 U. S. 471, 26 L. Ed. 314. That decision was rendered in the year 1880, after most of the decisions to which reference has hereinbefore been made were rendered. The opinion is an able and exhaustive one upon the subject now before us, in which it was held that the common-law rule which requires the acceptance of a resignation in order to create a vacancy is in force unless the rule has been discarded by statute. The reasons for the rule, as being founded in sound public policy, are well stated. Some of the decisions we have noticed above, including what seems to have been the pioneer case of United States v. John C. Wright, are criticised in the opinion. Among other things the court said: "As civil officers are appointed for the purpose of exercising the functions, and carrying on the operations of government, and maintaining public order, a political organization would seem to be imperfect which should allow the depositaries of its power to throw off their responsibilities at their own pleasure. This certainly was not the doctrine of the common law. In England a person elected to a municipal office was obliged to accept it and perform its duties, and he subjected himself to a penalty by refusal. An office was regarded as a burden which the appointee was bound, In the interest of the community and of good government, to bear. And from this it followed of course that, after an office was conferred and assumed, it could not be laid down without the consent of the appointing power. This was required in order that the public interests might suffer no inconvenience for the want of public servants to execute the laws. This acceptance may be manifested either by a formal declaration, or by the appointment of a successor. "To complete a resignation,' says Mr. Willcock, ‘it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books, or electing another person to fill the place, treating it as vacant.' And, in view of the manifest spirit and intent of the laws above cited, it seems to us apparent that the common-law requirement-namely, that a resignation must be accepted before it can be regarded as complete was not intended to be abrogated. To hold it to be abrogated would enable every officeholder to throw off his official character at will, and leave the community unprotected. We do not think that this was the intent of the law." The decision in the Edwards Case was cited and followed in the following cases: People ex rel. v. Williams, 145 Ill. 573, 33 N. E. 849, 24 L. R. A. 492, 36 Am. St. Rep. 514; State ex rel. v. Clayton, 27 Kan. 442;1 Clark v. Board of Education of Detroit, 112 Mich. 141 Am. Rep. 418.

656, 71 N. W. 177; Coleman v. Sands, 87 Va. 689, 13 S. E. 148. The following further authorities also support the rule that a resignation must be accepted in order to complete it and effect the vacancy: State ex rel. Reeves v. Ferguson, 31 N. J. Law, 107; Hoke v. Henderson, 4 Dev. Law (N. C.) 1, 25 Am. Dec. 677; Steel v. Commonwealth, 18 Pa. 451.

We believe the decided weight of authority supports the rule that an acceptance of a resignation is necessary in order to relieve an officer of responsibility and to create a vacancy. Under the decision in the Edwards Case, such must be the rule where the common law in that regard has not been changed by a statute. We regard that decision as an authority we should follow, unless the common-law rule has been clearly changed by statute in this state. The relator calls our attention to section 567, 1 Ballinger's Ann. Codes & St., in which the following appears: "If any justice of the peace shall die, resign, or remove out of the precinct for which he may be elected, or his term of office be in any other manner terminated, the docket,. books, records, and papers appertaining to his office, or relating to any suit, matter or controversy committed to him in his official capacity, shall be delivered to the nearest justice in the precinct. ***" "It is argued that the right of a justice of the peace to resign without an acceptance of his resignation is recognized by the above statute. We are not able to so read it. It simply directs what shall be done with his books and papers after the resignation of a justice has become effective. We are also referred to section 1548,

1 Ballinger's Ann. Codes & St., which provides, among other things, as follows: "Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer: (1) The death of the incumbent; (2) his resignation; (3) his removal. * We see nothing

in the above which changes the common-law rule. It is true it is declared that an office shall become vacant upon the resignation of the incumbent, but nothing is said about the method of effecting a resignation. The silence of the statute in that regard should be construed to mean that the established common-law method still obtains, and that a resignation is not complete until it has been accepted by the appointing power. Our attention has not been called to any other statutes which the relator claims have effected a change in the common-law rule. In the absence of a clear statutory declaration of a purpose to change the rule, it should not be held that it has been changed. The longstanding rule is wholesome. It insures a continuous responsible incumbent in an office. One may not lightly throw aside responsibilities which he has assumed, and leave the public without an official when some possible emergency might make the existence of a qualified officer of great importance.

We think the court did not err in sustaining the demurrer, and the judgment is affirmed.


(46 Wash. 651)


Where, in an action for the specific performance of a coi tract to trade city lots for personal property, performance was impossible because of the sale of the personal property, under foreclosure proceedings the court had no power to direct the performance of the contract by one party upon the payment of a sum of money by the other in lieu of the personal property.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 405.]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by H. Constantine and wife against W. V. Caswell and wife. From a decree for plaintiffs. defendants appeal. Reversed and remanded.

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ROOT, J. During August. 1905, respond1905, respond ents were the owners of certain live stock and farming utensils and a leasehold interest in a farm near North Bend, King county, Wash. The lease, executed by Mary M. Miller & Sons, a corporation, provided that the lessor should have a chattel mortgage upon the live stock and farm implements for unpaid rental. At this time there was $350 due as rent and secured by said mortgage. One O. G. Fish of Wenatchee also held a chattel mortgage upon said personal property. Appellants were the owners of two lots in Gilman addition to the city of Seattle. Against these lots there was a judgment of record in the sum of $44, which had been paid but not satisfied of record. There was also a lien for lumber furnished in the sum of $10.35. During said month of August these parties were negotiating for a trade, whereby respondents would exchange their leasehold interest and the live stock and farming utensils for the two city lots of appellants. There was an oral understanding between the parties. but not put in any written contract, that respondents' lessor would take a mortgage on the lets after respon lents received them, and release its chattel mortgage upon the stock and farming utensils. On the 1st day of Scptember, 190, the negotiations resulted in a written contract that day made and signed by respondent H. Constantine and appellant W. V. Caswell, and it is conceded that their wives consented to said contract. This agreement, aside from formal parts and the de

scription of the property, was as follows: "That H. Constantine agrees to deliver all farming implements, separators, etc., hereinafter mentioned (itemized personal property) free from all debt, mortgages or incumbrances. Upon delivery of said implements, stock. etc., free from all incumbrances, W. V. Caswell agrees to deliver to H. Constantine a deed to property situated in Interbay, consisting of a house and two lots, known on the plat as lots 14 and 15, block 6, Gilman addition to the city of Seattle, this deed to be a warranty deed, the property to be free from all debt, mortgage or incumbrances and taxes to be paid, this agreement to be null and void if either party fails to live up to the foregoing agreement."

Respondents alleged, and the court found, a verbal agreement to have been made after the written contract was executed, whereby it was understood that there was a mortgage to said Fish upon respondents' stock and farming utensils, and wherein it was alleged, among other things, that respondents were to pay and have said mortgage satisfied, and that the parties were to meet at office of Mary M. Miller & Sons within a reasonable time to exchange papers, and that respondents were to have certain papers with their attorney, Chas. McCann, in Seattle. Immediately after the signing of the written contract, respondent Constantine went to Wenatchee to secure the release of the mortgage held by O. G. Fish, and the parties hereto did not see each other again until after this suit was brought. Constantine agreed to at once obtain a release of the Fish mortgage, but did not do so until about six weeks after the contract was signed as aforesaid. Appellants claim that they were not notified of the release of this mortgage until after the present suit was commenced. On October 24th Constantine came to Seattle. and Mr. Miller, secretary of Mary M. Miller & Sons, a corporation, telephoned for Caswell to come to Seattle. The latter did so the following day. Constantine says that he went to the train and did not see Caswell alight therefrom, and then went to Miller's office and informed him that Caswell had not come. The latter, however, did arrive in the forenoon of said day, and called at Miller's office, waited awhile, and returned again at 1:30 in the afternoon, and remained several hours waiting for respondent Constantine, who did not again appear at the office. That evening Constantine met Miller upon the street and was informed that Caswell was in town. He told Miller that it was not necessary for him (Constantine) to remain, and that he had left the papers with his attorney, one McCann. Constantine and Caswell left Seattle that night without seeing each other. In the meantime appellants had gone upon the farm and done considerable work, in expectation that the deal would be closed up. Near the middle of December Caswell received a letter from

Constantine, which letter is not in evidence. I made as contended for in the reply and as

To it he replied by letter of December 15th, in which he tendered a return of all personal property to respondents and declared the agreement null and void, turned over the personal property to a neighbor for respondents, and removed from the farm. The $350 rental due from respondents and secured by the mortgage to the Miller Company thereupon was not paid, and in January, 1906, the mortgage was foreclosed and the personal property sold. The present action was brought by respondents to enforce specific performance of the contract, alleging full performance upon their part and failure and refusal to fulfill on the part of appellants. The court made findings and conclusions favorable to plaintiffs, and entered a decree directing that, upon payment by plaintiffs to defendants, or into the registry of the court for them, in the sum of $330, the defendants should make, execute, and deliver to plaintiffs a good and sufficient warranty deed for the city lots in question, and an abstract showing good title free from incumbrance, except a judgment of $44 and a lien of $10.85 upon the lots for claims found, and surrender immediate possession thereof; that there should be declared and reserved in favor of defendants a first and specific lien on said real estate in the sum of $330; that upon execution and delivery to the plaintiffs of a deed for said real estate, the plaintiffs should pay to defendants $330, less the cost of this action; that, if the defendants should fail, neglect, or refuse to execute a conveyance of said real estate as directed for a period of 10 days, a deed should be executed by the clerk of said court as commissioner. From this decree an appeal is prosecuted by defendants.

Appellants contend that the oral contract alleged in respondents' reply, and as found to have been made by paragraph 6 of the findings, is not sustained by the evidence. It will be noticed that the written agreement calls for the transfer of the personal property, free of incumbrance. As the written contract was made upon the 1st of September, and the respondent Constantine testifies that immediately thereafter he went away and did not see the appellants again until after the bringing of this action, we fail to see how, when, or where such an oral contract could have been made subsequent to the time of the making of the written contract. We are inclined to think that whatever oral agreement or understanding there was between the parties took place at or prior to the time when the written contract was executed. It was necessary for appellants to establish this oral contract in order to recover in this action. Negotiations leading up to a written contract are ordinarily presumed to culminate in said written document. It is, however, probably unnecessary for us to pass upon the question of this oral contract. Assuming it to have been

stated in the findings, we are unable to see how this would justify a conclusion that respondents are entitled to the relief granted them in the decree appealed from. Instead of directing the specific performance of the contract made by the parties, this decree directs the carrying out of an arrangement which the parties themselves did not make, but which was made for them by the court. The latter was evidently acting upon the theory that this was the nearest approach possible to the contract which the parties had made. Evidently the decree was based upon the theory that the foreclosure of the chattel mortgage upon the stock and farming utensils was chargeable to appellants, in not conveying the city lots upon which respondents were to execute a mortgage to their landlord for the unpaid rent in lieu of the mortgage which they had outstanding upon said personal property as security for said rent. But we cannot see any legal justification for this theory. Mary M. Miller & Sons was not a party to the contract between these parties, and was not the agent of either party or privy in interest with them. The respondents could have prevented the sale of the personal property under the foreclosure proceedings by paying the amount due their landlord, or perhaps by adjusting the matter otherwise. The respondents having neglected for more than six weeks to pay and secure a cancellation or a release of the Fish mortgage, and having permitted the Miller mortgage to be foreclosed upon their property, thereby becoming unable to furnish the principal part of the consideration to be paid by them for appellants' city lots, and having failed tc meet appellants at the time when they were both in Seattle for the purpose of complet ing their arrangements, we do not believe that a showing is made that will justify the decree made by the honorable superior court.

The same is therefore reversed, and the cause remanded, with instructions to dismiss the action.

HADLEY, C. J., and CROW, MOUNT, and FULLERTON, JJ., concur.

(46 Wash. 607)

GRAHAM v. BELL-IRVING. (Supreme Court of Washington. July 17, 1907.) 1. CONTRACTS-ACTION FOR BREACH-DEFENSES.

Plaintiff, an architect, agreed with defendant to prepare plans and specifications for a structure to cost not to exceed, with all extras, $25,000. The lowest bid for the construction of the building under the plans and specifications prepared by plaintiff was $35,000. Held, that the plans and specifications furnished were not in accordance with the contract, and plaintiff could not recover for them in a suit on the contract where defendant offered to return them.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 1249, 1253.j


The payment by defendant of $300 to plaintiff as part of the contract price for certain plans and specifications furnished by plaintiff before he had an opportunity to determine whether the plans and specifications were in accordance with the contract did not bind defendant to accept them, when it was found they were not in accordance with the terms of the contract. 3. APPEAL--HARMLESS ERROR-ERRORS FAVORABLE TO PARTY COMPLAINING.

Plaintiff, in an appeal from a judgment for defendant in an action on a contract, cannot complain of the failure of the court to grant defendant relief on his counterclaim for money paid plaintiff under the contract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4052.]

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by John Graham against H. BellIrving to recover for services as an architect. From a judgment for defendant, plaintiff appeals. Affirmed.

Jerold Landon Finch, for appellant. Piles, Howe & Farrell, for respondent.

HADLEY, C. J. The plaintiff in this action brought the suit to recover for services as an architect. He alleges a contract with the defendant of the following import: That he was on July 11, 1904, employed to form, draw, and write the preliminary sketches, plans, and specifications for a certain building which the defendant proposed to erect in the city of Vancouver, British Columbia; that defendant promised to pay as.compensation therefor a sum equal to 21⁄2 per cent. of the amount of the lowest or accepted bid, as the case might be, of a contractor afterwards to bid for the contract to erect said building according to the plans and specifications so prepared; that, acting under said contract of employment, the plaintiff prepared such sketches, plans, and specifications, and delivered them to the defendant at Vancouver on the 3d day of September, 1904: that defendant accepted them and instructed plaintiff to call for and receive from contractors bids to erect said building according to the plans and specifications; that, acting in accordance with such instructions, the plaintiff called for bids and received from the contractor a bid for $32.800, which was the lowest bid; that on the 7th day of September, 1904, defendant paid to plaintiff $300 to apply upon the contract aforesaid: that the total amount of compensation under the contract is $820, no part of which has been paid except said $300. Judgment is demanded for $520. The defendant answered with certain denials and admissions, and alleged affirmatively that he employed plaintiff to prepare plans and specifications for a building to cost $20,000, and with all extras to cost not to exceed $25,000; that the plaintiff accepted the employment, and assured defendant that he (plaintiff) could accurately estimate the cost of work in Vancouver, and that the building which defendant desired to

erect could be erected according to the plans and specifications which were to be prepared by plaintiff for not to exceed $20,000, with an outside limit of $25,000, including all extras; that defendant employed plaintiff only upon the express understanding that the building could be erected for an amount within the above sums mentioned according to the plans to be prepared; and that bids could be obtained for the erection at said figures. He further alleges that, after the delivery of certain plans and specifications and before the calling for bids, he paid plaintiff $300, but that in response to the call for bids the lowest bid was $35,000; that, by reason of the fact that the lowest bid was $10,000 in excess of the highest sum which the plaintiff had assured defendant the building would cost, defendant was financially unable to erect the building, and the plans and specifications were wholly worthless to defendant, the return thereof being tendered in court, that the plans and specifications have never been used by the defendant except to cal for bids as aforesaid. The answer sets up a counterclaim for the return of the $300 paid. The reply denied much of the affirmative matter in the answer, and, upon issues as before stated, the cause was tried by the court without a jury, and resulted in a judg ment that plaintiff shall take nothing by the action, and that his complaint shall be dismissed. The plaintiff has appealed.


The findings of the court are substantially in accord with the allegations of respondent's Aside from certain correspondence between the parties, the only evidence before the court was the testimony of appellant and respondent. Respondent's testimony fully supported his answer, and therefore negatived the contract alleged in the complaint. burden was upon appellant to establish the contract which he alleged. The trial court found the preponderance of the evidence to be with respondent, and we shall not undertake to say from anything appearing in the record that the court erred in that particular. With the facts established as found by the court, it would be manifestly wrong for appellant to recover. The court found that appellant was obligated by the contract between the parties to prepare plans and speci. fications for a structure to cost not to exceed $20.000, and with all extras not to exceed $25,000; that the lowest bid under the plans prepared was $35,000, which was $10.000 in excess of the highest sum appellant had assured respondent the building would cost. Under such facts there was a plain failure to prepare plans that would come within the limitations of the construction cost fixed by respondent, a straight breach of the contract. Appellant is therefore not entitled to recover upon the contract, and he is no more entitled to recover upon a quantum meruit. Respondent has neither accepted nor received any benefits from appellant's work, and he offered to fully return the plans. It is argued

that the respondent's payment of $300 on account of the plans amounted to an acceptance. The payment was made before it had been demonstrated by the bids that the plans would not meet the requirements of the contract in the matter of cost of construction. It was a payment made upon account, somewhat hastily perhaps, but under the circumstances it was not an act which bound respondent to an acceptance of the plans.

Appellant argues that to support consistency in the judgment he should either have had judgment for the contract amount he claims, or that the court should have given respondent judgment for the return of the $300 which he paid. The court refused this relief to respondent under his counterclaim. Even if it be true that respondent was entitled to recover the $300, still he has not appealed from the judgment and is not complaining. The judgment permits appellant to keep that money, which is in his favor. It is therefore not prejudicial to him in that respect, and affords him no ground for complaint here. Jose v. Stetson, 20 Wash. 648, 56 Pac. 397; Seattle Brewing, etc., Co. v. Donofrio, 34 Wash. 18, 74 Pac. 823.

Under the record, we think the judgment must be affirmed.


(46 Wash. 642)


Code 1881. § 2979, provides that all county roads shall be 60 feet wide, unless the county commissioners shall upon the prayer of the petitioners for the road determine upon a less number of feet in width. Held that, where the county board acquires jurisdiction to locate a road upon the filing of a petition, they may fix its width at 60 feet, or at any number of feet less than 60 upon the prayer of any of the petitioners at the hearing, but they are not bound by the petitioner's prayer, and may fix the road at any width that the circumstances seem to warrant.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, §§ 147-150.]


Under Code 1881. § 2871. the notice of the relocation of a road need not state the width of the proposed road, but only the place of beginning, the intermediate points, if any, and the place of termination.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, § 241.]



The fact that a person petitioned the city council to open a road 60 feet in width in front of her property did not of itself grant the city the right to take any of her property without compensation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 205-214.]

Appeal from Superior Court, King County; F. B. Albertson, Judge.

Action by Marie Hab to enjoin the city of Georgetown from taking property for street purposes. From a decree granting an injunction, defendant appeals. Affirmed.

I. II. Randolph and Wilson & Thorgrimson, for appellant. Smith & Cole, for respondent.

MOUNT, J. This action was brought to enjoin the city of Georgetown from taking a strip of land 15 feet wide from respondent's property for street purposes. The trial court decreed 5 feet of the land in dispute to the appellant as a public highway, but enjoined the appellant from taking the remaining 10 feet. The city appeals from that part of the decree which restrains it from using the 10 feet of respondent's property for highway purposes.

The material facts, as agreed to by the parties, are, in substance, as follows: In the year 1863, a county road 60 feet wide, leading in a southerly direction from Seattle, passing respondent's property, to a point on the Duwamish river, was established, laid out, and opened by the board of county commissioners of King county. Since that time the center line of the road has been continuously used and maintained at public expense. The location of the center line of the road has not been changed in front of respondent's property. On February 4, 1879, a petition was filed with the county commissioners asking for a review and relocation of this road. The petition was granted, viewers appointed, and notice given, as required by law therefor. On May 3, 1379, the viewers' report was filed. Two days later a petition was filed by certain of the petitioners for the relocation of the road, requesting the county commissioners to fix the width of the relocated road at 30 feet along certain portions thereof. The commissioners on that day, May 5, 1879, entered an order relocating the road as petitioned for, but fixed the width thereof at 40 feet, and directed the road to be laid out and opened, which was done by the county surveyor, and the road as so laid out and opened was approved by the county commissioners on May 16, 1879. Thereafter the property owners about the point in question fenced up their property by placing their fences on the lines of their lots as platted. which left only 30 feet of the road open to the public, and this 30 feet of road has been used by the public since that time. The fences have encroached upon the road for a distance of 5 feet for about 13 years. Respondent, during that time, had occupied this portion of the street with certain sheds. On February 5, 1906, a petition was filed praying the city council of Georgetown, which was incorporated long after the road was established as aforesaid by the county of King, to open the highway to the width of 60 feet. The respondent signed said petition. Thereafter the city removed the fences and

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